United States District Court, D. Montana, Missoula Division
Jeremiah C. Lynch United States Magistrate Judge
Tanya Gersh has moved pursuant to Federal Rule of Civil
Procedure 37 to compel Defendant Andrew Anglin to provide
complete responses to her first set of
interrogatories. Gersh also seeks fees and costs under Rule
37. Gersh's motion to compel is granted in part and
denied in part as set forth below.
Court has broad discretion to manage discovery. Hunt v.
County of Orange, 672 F.3d 606, 616 (9th Cir.
2012). Parties are generally entitled to “discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case.” Fed.R.Civ.P. 26(b)(1). The information
“need not be admissible in evidence to be
discoverable.” Fed.R.Civ.P. 26(b)(1).
discovery purposes, relevance is construed broadly to include
any matter that “bears on, or that reasonably could
lead to other matters that could bear on, any issue that is
or may be in the case.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978). See also Dewidar
v. National Railroad Passenger Corp., 2018 WL 280023 *2
(S.D. Cal. Jan. 3, 2018) (applying Oppenheimer's
relevance standard under current version of Rule 26(b)(1)).
In assessing proportionality, courts consider “the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit.” Fed.R.Civ.P. 26(b)(1).
37 of the Federal Rules of Civil Procedure provides a
mechanism by which a party seeking discovery may request an
order compelling the opposing party to fulfill its discovery
obligations.” Carlson v. Fedex Ground Package
System, Inc., 2012 WL 4760889 *1 (D. Mont. Sept. 12,
2012). If a party fails to respond to interrogatories or
requests for production, the party seeking discovery may move
for an order compelling an answer. Fed.R.Civ.P. 37(a)(3)(B);
Carlson, 2012 WL 47608889 *1. “[A]n evasive or
incomplete disclosure, answer, or response” to a
discovery request “must be treated as a failure to
disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4).
the moving party has the burden of showing that the discovery
sought is relevant, “the parties and the court have a
collective responsibility to consider the proportionality of
all discovery and consider it in resolving discovery
disputes.” Nei v. Travelers Home and Marine
Insurance Company, 326 F.R.D. 652, (D. Mont. 2018). The
party resisting discovery bears “the burden of
clarifying, explaining, and supporting its objections”
and showing why the discovery should not be allowed.
DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D.
Cal. 2002) (citing Blankenship v. Hearst Corp., 519
F.2d 418, 429 (9th Cir. 1975)).
filed this action on April 18, 2017, asserting state law
claims against Anglin for invasion of privacy, intentional
infliction of emotional distress, violations of Montana's
Anti-Intimidation Act, and punitive damages. Gersh sought and
obtained two extensions of time to effect service, and on
November 14, 2017, defense counsel entered an appearance on
Anglin's behalf. Approximately two weeks later, Anglin
moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)
for lack of subject matter jurisdiction, lack of personal
jurisdiction based on insufficient service of process, and
failure to state a claim for relief. On December 15, 2017,
the Court issued an order staying discovery pending
resolution of the of the jurisdictional challenges raised in
Anglin's motion to dismiss. (Doc. 41). Those challenges
ultimately failed, and on May 24, 2018, the Court issued an
order terminating the discovery stay. (Doc. 95).
7, 2018, Gersh served her first set of interrogatories and
requests for production on Anglin. (Docs. 113-1; 124-1). As
provided in Fed. R. Civ. P.33(b)(2), Anglin's responses
were due 30 days later. (Doc. 113-2; 124-2). On the July 9,
2018 deadline, Anglin served his initial discovery responses
consisting entirely of objections and filed a motion for a
protective order seeking a 60-day extension of time to
provide substantive responses. On July 13, 2018, the Court
entered an order giving Anglin until August 10, 2018, to
provide complete responses to Gersh's interrogatories and
until August 27, 2018, to provide complete responses to her
requests for production. (Doc. 103).
served his supplemental responses to Gersh's
interrogatories on August 11, 2018 - missing the extended
deadline by one day - and timely served his supplemental
responses to Gersh's requests for production on August
27, 2018. The parties unsuccessfully met and conferred
regarding the accuracy and completeness of Anglin's
supplemental responses, and Gersh filed the pending motions
First Set of Interrogatories contained twelve separate
interrogatories. Of those, Gersh moves to compel Anglin to
immediately answer in full, and supplement as necessary his
answers to, Interrogatories 1-11. (Doc. 112, at 1). Gersh
argues Anglin's objections to these interrogatories are
waived due either to untimeliness or their boilerplate
nature. Even if they are not waived, Gersh argues
Anglin's objections are unavailing on the merits.
Finally, to the extent Anglin has provided substantive
answers, Gersh maintains those answers are demonstrably
incomplete and evasive.
Timeliness of Objections
first argues that Anglin has waived all grounds for any
objections asserted after the August 10, 2018, extended
deadline for providing complete answers to her
interrogatories. This argument relates specifically to
Interrogatories 6, 7, and 9.
noted above, Anglin served his supplemental answers and
objections to Gersh's first set of interrogatories on
August 11, 2018 - one day after the extended deadline
established by the Court. Anglin's supplemental answers
reiterated the objections set forth in his initial responses,
and also asserted a new ground for failing to answer
Interrogatories 6, 7, and 9. In particular, Anglin indicated
that he would provide responsive information to these three
interrogatories “subject to an appropriate protective
order that excludes any person affiliated with the Southern
Poverty Law Center from obtaining such information due to the
dangerous propensities of its members.” (Doc. 113-3, at
9-13). Anglin argues that because the Southern Poverty Law
Center is a non-profit advocacy organization, its
non-attorney staff are not bound by the rules of professional
conduct. Anglin fears that without a protective order, those
non-attorney staff members might be able to access and misuse
the information provided in his discovery responses.
argues Anglin waived this objection because it was not timely
raised. Under Fed.R.Civ.P. 33(b)(4), any ground for objecting
to an interrogatory “not stated in a timely objection
is waived unless the court, for good cause, excuses the
failure.” Local Rule 26.3(a)(4) similarly provides that
failure to object to an interrogatory “within the time
fixed by the rules, or within the time to which the parties
have agreed, constitutes a waiver of any objection.”
Consistent with these rules, the Ninth Circuit recognizes
“that a failure to object to discovery requests within
the time frame required constitutes a waiver of any
objection.” Richmark Corp. v. Timber Falling
Consultants, 959 F.2d 1468, 1473 (9th Cir.
1992). See also Usrey v. Deyott, 2013 WL 2561591, *1
(D. Mont. June 11, 2013).
does not dispute that his supplemental answers and objections
to Gersh's interrogatories were one day late, which means
that his newly raised objections were untimely. Instead,
Anglin argues Gersh was not prejudiced by the minimal delay
and asks the Court to excuse his untimely objections for good
cause. In a supporting declaration, defense counsel states
that because Anglin does not live in the United States it was
difficult to coordinate with him on his discovery responses.
(Doc. 117-1, ¶ 4). But Anglin has claimed international
residency since this case was filed in April 2017, thereby
giving him more than enough time to establish an effective
means of communicating with his attorneys. In addition,
defense counsel explains that the primary paralegal for his
office had recently left the firm, further complicating the
logistics of having Anglin's discovery responses properly
executed in time. (Doc. 117-1, ¶ 6). Such changes in law
office staff are not uncommon, however, and the Court finds
that under the circumstances Anglin has not established good
cause for failing to meet the extended deadline. Because
Anglin did not serve his supplemental responses to
Gersh's interrogatories until after the August 10, 2018,
deadline for doing so, his newly raised objections to
Interrogatories 6, 7, and 9 are untimely.
addition, it is worth noting that Anglin had ample time to
file a motion seeking such a protective order instead of
refusing to answer Gersh's interrogatories without one.
Anglin was served with Gersh's interrogatories on June 7,
2018, and had until August 10, 2018 to provide complete
responses under the extended deadline established by the
Court. Anglin could have moved for a protective order during
that two-month period, but for whatever reason did not do so.
Thus, in addition to being untimely, Anglin's newly
raised objections to Interrogatories 6, 7, and 9 are waived.
next argues that virtually all of Anglin's objections
should be considered waived due to their boilerplate nature.
grounds for objecting to an interrogatory must be stated with
specificity.” Fed.R.Civ.P. 33(b)(4). “The
recitation of ‘boilerplate objections or blanket
refusals' therefore is not consistent with the
requirements of the discovery rules.” Nei v.
Travelers Home and Marine Insurance Company, 326 F.R.D.
652, 656 (D. Mont. 2018) (quoting Burlington N. v. Santa
Fe Ry. Co. v. U.S. Dist. Ct., 408 F.3d 1142, 1149
(9th Cir. 2005)). The Local Rules similarly
require that the party resisting discovery follow any
objections with “a statement of reasons, ”
thereby requiring that objections be made with specificity.
The objecting party bears the burden of showing that a
discovery request is improper. Nei, 326 F.R.D. at
656. “Where a party's objections are themselves
vague and impermissibly overbroad, and no specifics are
given, the objecting party fails to carry its burden.”
Nei, 326 F.R.D. at 656-57 (quoting Russell v.
Daiichi-Sankyo, Inc., 2012 WL 1161435, *2 (D. Mont.
2012)). Nevertheless, even when the objecting party fails to
carry its burden, the Court has an obligation to review the
discovery requests to ensure that they are not frivolous.
Nei, 326 F.R.D. at 657 (citing Moreno Rivera v.
DHL Global Forwarding, 272 F.R.D. 50, 57 (D.P.R. 2011)).
initial objections and supplemental answer and objections,
Anglin lists five general objections to all twelve
interrogatories and then incorporates those objections by
reference into each specific response. He objects generally
to each interrogatory to the extent it (1) seeks to impose
duties on Anglin beyond the scope of the Federal Rules of
Civil Procedure or the Local Rules; (2) seeks confidential,
proprietary, or sensitive business information; (3) seeks
information protected by the attorney-client privilege or
work product doctrine; (4) seeks information not within his
possession, custody, or control; (5) is vague, ambiguous,
overly broad, or unduly burdensome.
makes no attempt to explain how these general objections
relate to particular interrogatories or are supported by the
particularized facts. Without some such explanation, these
objections are so general that the Court cannot meaningfully
evaluate them on their merits. Accordingly, the Court finds
they are waived.
additionally objects to Interrogatories 1-11 individually on
the following ground: “Defendant objects to this
interrogatory as irrelevant and disproportionate to the needs
of the case, as it makes no attempt to narrow itself to
information related to any claim or defense of any
party.” (Doc. 113-3, at 4-15). Anglin further objects
Interrogatories 1, 2, and 9 on the basis that each one is
“overbroad and unduly burdensome, as it is not limited
in scope to any claim or defense, or even the general subject
matter of this litigation.” (Doc. 113-3, at 4-5; 12).
Anglin similarly objects to Interrogatory 4 “as overly
broad and unduly burdensome, ” and Interrogatories 5-11
as “as vague, overbroad and unduly burdensome.”
(Doc. 113-3, at 7-15).
extent Anglin does not explain how these objections relate to
the individual interrogatories at issue or provide any
supporting argument, the objections lack the specificity
required under the federal and local rules. Such nonspecific
objections asserted without any further explanation are
insufficient, and the Court considers them waived. While most
of Anglin's objections fall into this category, he does
provide some additional specificity in his objections to
Interrogatories 3, 5, 9, 10, and 11. To the extent Anglin
provides sufficient detail, the Court does not consider those
objections waived. Likewise, Anglin provides supporting
argument for some of his otherwise boilerplate objections in
his brief in response to the motion to compel. To the extent
Anglin has done so, the Court exercises its discretion in
favor of considering Anglin's objections on the merits.
footnote, Gersh argues that Anglin's practice of first
objecting to each interrogatory and then responding
“subject to” his various objections is confusing
and evasive, and provides a basis for considering all of
Anglin's objections waived. (Doc. 113, at 14). Courts
within this district have previously disapproved the practice
of providing boilerplate objections to discovery requests and
then responding because doing so confuses the issue of
“whether the requested information was provided in
full.” Russell v. Daiichi-Sankyo, Inc., 2012
WL 1161435 *4 (D. Mont. Apr. 6, 2012). While this Court
similarly disapproves the practice and Anglin's use of it
here, the Court will not deem Anglin's objections waived
on this basis. Thus, the Court addresses the merits of any
unwaived objections and the sufficiency of Anglin's
responses to each interrogatory below.
Interrogatory 1: List any and all
usernames under which you posted any comments in the forums